For the fourth time this week, a federal court has struck down a policy put forward by Republicans that would either constrict voting rights or dilute the power of minority votes. We had the voter ID law in Texas, the redistricting maps in Texas, the restrictions on voter registration in Florida, and now the restoration of early voting in Ohio.
A federal judge in Ohio is giving all voters in the swing state the option of casting their ballot in person during the three days before Election Day.
A judge on Friday issued a preliminary injunction granting the request from President Barack Obama’s campaign that targets a state law that cuts off early voting for most residents on the Friday evening before a Tuesday election.
This was the infamous suit that the Romney campaign claimed was infringing on the right to vote of members of the military. In reality, the Obama campaign simply wanted everyone in Ohio to get the same access to early voting before the election that military personnel had, expanding the opportunity for enfranchisement instead of restricting it. The judge, Peter C. Economus of the US District Court, agreed, saying that “restoring in-person early voting to all Ohio voters through the Monday before Election Day does not deprive (military and overseas) voters from early voting.” He added, “Instead, and more importantly, it places all Ohio voters on equal standing.” The judge, probably against the wishes of Antonin Scalia, actually used the precedent of Bush v. Gore, about the “arbitrary and disparate treatment” of different classes of voters, in his ruling.
Jon Husted, the Secretary of State of Ohio, not only banned early voting in the three days before the election, but he also restricted early voting hours statewide, including canceling it on the weekends. And he fired Democratic members of county election boards who sought to defy him and institute weekend early voting for their constituencies.
The state of Ohio will likely appeal to the Sixth Circuit Court. Rick Hasen writes:
There are reasonable arguments over whether the (District) Court picked the right level of scrutiny to apply, and whether the judge applied the scrutiny he said he was applying. Further, there is a major debate about what Bush v. Gore requires, and the Sixth Circuit may have to go en banc to resolve the meaning of the case: does it in fact require (1) equal treatment of all voters in terms of opportunities to vote; and (2) a kind of “non-retrogression” principle, whereby the state may not remove a method of easier voting once it has used it in a past election? [...]
This could get very ugly very quickly. This is certainly not the last word, unless SOS Husted chooses not to appeal.
We do have this trend in the jurisprudence of the week toward opening up voting to allow as many as possible to cast a ballot. But this is a different kind of case than those pursued by the Justice Department under the Voting Rights Act. So it’s anybody’s ballgame.